László Székely, the new ombudsman

There are times when governments can go very wrong with an appointment. It can happen anywhere. The famous American case was George H. W. Bush’s appointment of  David Souter to the US Supreme Court in 1990. Souter was supposed to be a conservative but turned out to be a “closet liberal.”

Something similar happened to Fidesz twice lately with appointments to the position of ombudsman. Prior to 2010 there were several ombudsmen, each responsible for a specific field: environmental issues, human rights, data protection, minority rights, etc. Vikor Orbán wanted to have only one ombudsman, and he picked Máté Szabó, the man responsible for human rights before 2010. At the time I was not particularly impressed with Szabó who, in my opinion, didn’t distinguish himself in his earlier position. Most of the issues that interested him sounded petty to me. In fact, it might have been this very aspect of Szabó’s activities that appealed to Orbán. Perhaps he thought that Szabó would get bogged down in picayune issues and would be too busy to spend much time on the constitutionally questionable legislative work of the Fidesz voting machine. To everybody’s surprise Szabó became a very active ombudsman who resolutely fought to salvage the remnants of Hungarian democracy.

Szabó’s tenure ended on September 24, 2013, and János Áder nominated László Székely, who had held government positions in both the first and the second Orbán governments. In fact, way back in 2001 his name came up as the nominee of President Ferenc Mádl to the position of ombudsman responsible for data protection but then, because of MSZP’s opposition, Viktor Orbán couldn’t give the job to his favorite candidate. Once he had a two-thirds majority, however, he didn’t have to worry. Székely’s appointment was assured.

When Székely’s name surfaced as the potential nominee the opposition parties had all sorts of objections. They were worried about his long, close association with the current government. Some people pointed out that his knowledge of constitutional law was scanty. Népszava described the departure of Szabó as the fall of the last bastion in the defense of democracy. I ended my earlier post on this appointment with these words: “For the time being it is hard to say what kind of ombudsman Székely will be. After all, Szabó turned out to be excellent despite earlier indications and predictions to the contrary.” I added: “It may happen again, but Viktor Orbán rarely makes mistakes on personnel choices.” Well, it seems that he did.

Ombudsman László Székely / Source: hirma.hu

After his appointment Székely gave a number of interviews in which he emphasized that in spite of his government jobs and close association with Fidesz he will be an independent and judicious ombudsman. That assurance was to be expected. But, looking back at these interviews, we can already find signs that Székely might be less of a Fidesz clone than some expected. For example, he told the reporter of Népszabadság that “a good ombudsman must show solidarity with the dejected, the defenseless and must be sensitive to problems of destitution and poverty.” Not exactly the philosophy of the Fidesz ideologues. A few days later in a longer interview, also with Népszabadság, he said: “Believe me, I will jealously guard my professional prestige acquired in the last thirty years.”

During his interviews he kept repeating his belief that after the 2014 election the burden on the lone ombudsman will be lighter because he will not be the only person who can turn to the constitutional court for remedy. He seems to have been convinced that the opposition parties would get at least 25% of the seats, which would allow them to turn to the constitutional court themselves. As we know, this is not how things turned out.

Székely carefully avoided criticizing his predecessor and stressed the necessity of continuity. Indeed, he left the structure of the office pretty well intact. He kept emphasizing, however, that he will try to improve the score card in favor of the ombudsman’s office when dealing with the constitutional court. That is, he wanted to have more cases decided in his office’s favor. Given the composition of the constitutional court, I doubt that Székely’s hopes will materialize, but it is certainly a worthy goal.

Székely took over the position at the end of September. I began to notice increased activity in his office already in early February. The Hungarian Helsinki Commission turned to Székely to investigate the “three-strike law” which their lawyers regarded as unconstitutional. Székely concurred and called on the Ministry of Administration and Justice to discuss how to change the law to make it constitutionally acceptable. The ministry’s reply came swiftly: they are not changing the law and they are not ready to negotiate.

Székely seems to be interested in education. He turned to Zoltán Balog’s ministry several times, pointing out the inadequate teaching and equipment in segregated schools. He complained about the curriculum, saying that he finds it worrisome that students encounter the heinous effects of ideas of hatred only in the last year of high school. In his opinion societal change is necessary in this respect and here education has a large role to play. Although the government denied that there were serious problems supplying schools with textbooks, Székely’s office investigated and found that the government didn’t tell the truth. There were schools where some of the textbooks didn’t arrive until late December.

He also pays attention to the homeless. About a week ago he turned to the Kúria for remedy. In his opinion the local administration in Budapest designated far too many places as forbidden territories for the homeless. The ombudsman asked the Kúria to change some of the regulations and invalidate others.

As for the organic farm of Kishantos, Székely’s office began to investigate the situation already in December and turned to Sándor Fazekas, minister of agriculture, for information. The ombudsman expressed the view that the organic farm, the result of twenty years of careful attention, deserves constitutional protection. At that point Fazekas assured Székely that he would call together a forum of experts and civic groups to work out a strategy for the constitutional protection of environmental values. Of course, there is no forum, no strategy, only a ruined crop.

These are only a few of the many cases Székely has handled since October 2013. His appointment is for six years, and he will be the only person who can do battle with the government and the constitutional court. Not an enviable position to be in.

Massive police “inspection” in Budapest on Sunday

I almost missed the 24-hour-long police action in the nine districts of the left bank of the Danube, which means the entire Pest side of Budapest. Thousands of policemen worked diligently starting at “Sunday morning zero hour” to stop and search cars. These guardians of law and order had the authority to examine the clothing of the passengers and could search their cars looking for “instruments that may endanger public safety.” When reporters inquired why this heightened alert, the police refused to reveal the reason for what police jargon calls “increased inspection” (fokozott ellenőrzés).

It was twenty years ago that I first experienced similar Hungarian police tactics. I was riding with relatives when the car was pulled over for no good reason by two young policemen who wanted to see the driver’s license. I was somewhat shaken, but it turned out that this was common practice. Later an Internet friend reported that during a fairly short trip he was stopped three times. In any case, my relatives took the whole incident in stride.

These periodic checks of absolutely innocent drivers are annoying enough, but this latest full-scale “raid,” as Magyar Nemzet called it, is most likely unconstitutional. At least this is what the Hungarian Helsinki Committee thinks. On July 19 the organization, after a similar raid of a private club maintained by a Jewish youth organization, turned to Máté Szabó, the ombudsman, to inquire about the constitutionality of such police raids.

About a month ago the police stepped up its inspection of motorcyclists and bicyclists in Budapest, allegedly “because during the summer there are accidents every day that involve motorcycles and bicycles.” Twenty-five percent of those inspected were found guilty of breaking various rules and regulations. These inspections are ordered because the leaders of the Hungarian police force claim that  they serve the purpose of “reducing the number of crimes, preventing illegal activities and forestalling traffic accidents.” The fines, of course, also bring in much needed revenue.

When the Budapest police chief was asked the reason for this latest mega-inspection, he refused to divulge its purpose. According to Ferenc Krémer, an expert on police matters, not divulging the reason for police actions was “the customary practice of the Kádár regime.” In fact, a policeman who approaches a vehicle during these inspections must inform the passengers of the car of the purpose of his mission and ask for their cooperation. Naturally, in this case no such practice was followed because there was no declared reason for the search.

Now comes the question of what is considered to be a bodily search (motozás in Hungarian). It seems that according to the official police definition such a search includes bodily cavities, and it can be performed only in the presence of a doctor. However, the “search of clothing,” which is currently allowed, is also an intrusion because after all it entails what we call “frisking” in English–that is, searching  for something concealed, especially a weapon, by passing the hands quickly over clothes or through pockets. Well, to my mind this is also “motozás.” Searching the car is also questionable according to the Hungarian Helsinki Committee, especially since the European Court of Justice already made a ruling forbidding it in a case involving the U.K. police force.

“Increased inspection”
MTI / Photo Sándor H. Szabó

The argument that these periodic searches of people and cars are instrumental in crime prevention has no foundation. While the number of police actions has been steadily growing since September 2012 when the new national police chief took over, so has the number of crimes.

As I said, I almost missed this news, mostly because the Hungarian media didn’t pay much attention to it. A well known Hungarian journalist e-mailed me this morning complaining about the scant coverage. Given the secrecy and the large scale of the “increased inspection,” he suspects that the real aim of this and similar raids is intimidation. I wouldn’t be surprised if he were right.

Fidesz leaders have certainly used intimidation before. And here’s one small example from today. In a Miskolc hospital eight premature babies died over a short period of time. Viktor Orbán himself stepped in. He suspended the director of the hospital and personally ordered the police to investigate and darkly mentioned the possible role of the National Security Office in the case. I’ll bet that everybody in that hospital is shaking in their boots at the moment. It’s not every day that a prime minister suspends hospital personnel and orders a police investigation of an individual hospital’s practices.

The dark message? The police, the government’s enforcement agency, should be feared and the population should understand that “raids” can come at any time, with no probable cause required and no justification necessary. This kind of intimidation belongs in a police state, not in a democracy.

The new Hungarian ombudsman: László Székely

The news of the day in Hungary, aside from record temperatures over 40ºC, is President János Áder’s announcement that the next ombudsman will be László Székely, an associate professor of civil law at ELTE’s Law School. Just as today’s record temperature was not a great surprise given the weather forecasts, Székely’s nomination for the post wasn’t exactly unexpected.

As in almost all facets of the administration of the country, Fidesz made fundamental changes in the function and position of the Hungarian ombudsman. Earlier there were several ombudsmen, each with a specific field of expertise: environmental issues, data protection, minority rights, etc. Viktor Orbán obviously decided that he didn’t want to be bothered by too many nosy ombudsmen and therefore completely reorganized the system. Today there is only one ombudsman who has to handle all complaints. Moreover, this new position became a great deal more important than before with the introduction of a new constitutional provision that gives only the ombudsman, in addition to parliament and the president, the right to ask the constitutional court for a review of laws passed by parliament.

The sole ombudsman who kept his job when Orbán came into power was Máté Szabó who earlier, in my opinion, didn’t distinguish himself. Most of the issues that interested him sounded petty to me. I guess at the time of his reappointment it was this  aspect of Szabó’s activities that actually appealed to Viktor Orbán. He most likely thought that Szabó would get bogged down in picayune issues and would be too busy to spend much time on the constitutionally questionable legislative work of the Fidesz voting machine. To everybody’s surprise Szabó became a very active ombudsman who resolutely fought to salvage Hungarian democracy. By now he is the only man in an important position who can be called independent. Since Szabó’s tenure ends on September 24, János Áder was required by law to nominate someone to replace him by August 10.

A couple of days ago Áder, emphasizing that he is not obliged to listen to the heads of the parliamentary caucuses on his choice of ombudsman, declared his willingness to get together with the parliamentary leaders, including András Schiffer whose party just lately regained its right to form an official caucus. In addition to Schiffer, there were leaders of Fidesz, KDNP, MSZP, and Jobbik. Neither PM (Párbeszéd Magyarországért) nor DK Demokratikus Koalícíó was represented because of the parliamentary rules introduced by László Kövér according to which they couldn’t form a separate delegation.

Fidesz-style consultations shouldn’t mislead anyone, especially if they are initiated by János Áder. It’s true that occasionally he makes gestures to demonstrate his “independence,” but by and large he is faithful to Fidesz dogma. There is no question in my mind that the person was already picked after some consultation between Viktor Orbán and his closest associates way before the leaders of the parliamentary delegations were invited to Sándor Palota. During the consultation no name was mentioned. Áder only wanted to know what kind of a man his visitors had in mind. The laundry list included such characteristics as independent, highly qualified, not someone too closely associated with one party, etc.  At the end of the meeting Áder announced that they had agreed on an ideal candidate. He will act accordingly.

Today Áder emphasized that Székely “was never a member of any party either before or after the change of regime.” Every time I hear someone proudly announce on talk shows that “I have never been a member of any party,” I know full well what’s coming next: an emphatically right-wing assessment of the present political situation. As if lack of party membership would ensure political independence. Of course this is not at all the case.

László Székely, the nominee for the position of ombudsman

What we know about László Székely is that he held government positions in both the first and the second Orbán governments. Otherwise, he is a professor of civil law and, according to his students, is a good lecturer, a fair grader, and “if you’re prepared you have nothing to fear at his exams.” He also makes his lectures interesting. Otherwise, at least according to Áder, he is no stranger to international law because in 1984 he received a diploma from the “Seminar of International Comparative Law of the University of Strasbourg” which sounded a bit strange to my ears. How can you receive a diploma from a seminar? I managed to find a Regent University School of Law at the University of Strasbourg which offers a six-week  course for international students as part of the Strasbourg Study Abroad program. Perhaps this is what Áder had in mind, but if this is the case this mini-course can’t really be called a proper grounding in international law.

András Schiffer, who was most likely a student of Székely, admits that he is an excellent teacher and a good theoretician but claims that his knowledge of constitutional law is scanty when under the present circumstances the ombudsman is “the last bastion of constitutionality.” Schiffer also objected to Székely’s constitutional philosophy. Székely’s last government job was to coordinate the work done by several scholars on the new civil code where he had no objections to discrimination against people not officially married. Or, perhaps even worse, Székely’s main field of interest is the media. But he approaches this subject not from the point of view of freedom of expression and freedom of the press; rather, he is much more interested in regulating the media. Not a good omen.

Fidesz and KDNP leaders are naturally delighted with the choice. Gábor Vona was less polite than Schiffer. He announced that “László Székely’s ties to Fidesz are well known” and therefore his party will formulate its opinion on the subject on this basis.

MSZP was very restrained. Pál Steiner, a member of the parliamentary committee on the constitution and justice, announced that “they will take the President’s suggestion seriously and the MSZP caucus will decide on the issue at its first meeting of the fall session of parliament.”

For the time being it is hard to say what kind of ombudsman Székely will be. After all, Szabó turned out to be excellent despite earlier indications and predictions to the contrary. It may happen again, but Viktor Orbán rarely makes mistakes on personnel choices.

George Orwell in Budapest: The new surveillance law

When faced with the task of writing a post my usual problem is that I have far too much material. On any given topic there can easily be 50-60 news items and opinion pieces. Well, that’s not my problem today. I simply can’t understand this silence about the new law on the surveillance of top government officials, especially when according to Máté Szabó, ombudsman for basic rights, and several other human rights organizations the law is unconstitutional.

Who are the people who will automatically be subjected to surveillance? The bill insists that the new bill on national security does not extend the circle of those who must undergo this procedure. According to the Hungarian-language description of the bill, the high officials who must agree to surveillance are cabinet ministers, undersecretaries, deputy-undersecretaries, government commissioners and commissioners appointed by the prime minister, heads of independent government organizations, heads of government offices handling the official business of citizens, high officials of parliament, the head of the Office of the President, ambassadors, consuls, chief of the general staff, generals, high police officers, CEOs of state companies, members of the national security offices, member of the counterintelligence, members of the parliamentary committee on national security, and even the ordinary parliamentary guards recently appointed.

So, if this surveillance bill does not affect more people than the earlier one why is everybody up in arms? One big difference is that earlier bill stated that once a person was found reliable and received security clearance he would not be the object of further surveillance. Now this provision has changed. As Fidesz’s brief announcement said, “surveillance will be continuous.” Twice a year for at least thirty days each time the government can listen to these people’s telephone conversations, search their houses, and read their correspondence. These surveillance measures would also extend to their family members. Moreover, the number of people who would have to go through this continuous clearance procedure might grow in the future because the bill contains a paragraph that allows the authorities to change the parameters by decree. That is, without amending the bill.

According to the new bill, it will no longer be necessary to get a court order to gather secret information. And there is no possibility of appeal for the wrongfully accused. Once someone  is found guilty by the Alkotmányvédelmi Hivatal (AVH, what an unfortunate name since its abbreviation is practically identical to the notorious ÁVH, Államvédelmi Hatóság) he can immediately be fired. No cause need be given.

But let’s go back a step to the questionnaire these top officials must fill out. Some of the questions are pretty routine. For example, those about alcohol or drug consumption. The Hungarian questionnaire also delves into people’s sex lives, asking them about their extramarital affairs. Another peculiarity of the bill is that the ongoing security clearance/surveillance also extends to the official’s family. So, the spouse of a high official will have to answer the same kinds of questions.

One especially objectionable item on the questionnaire is the official’s private connections with foreign nationals. Who is considered to be a foreign national? Is a German citizen a foreigner? Both the Hungarian and the German are citizens of the European Union. What about relatives living in the neighboring countries? Or Internet connections via social media? After all, some members of the government write blogs or are busy on Facebook and Twitter. Does such a link to the outside world constitute a national security risk?

A few weeks ago there was great hilarity in opposition circles when two very ignorant Fidesz members of parliament suggested that people who were members of the communist party or KISZ, the communist youth organization, before 1990 should be considered security risks and thrown out of their jobs. Well, if that had been adopted, they could have started with Viktor Orbán himself, followed by János Kövér,  János Áder, and several others. They were all KISZ secretaries. Naturally, that amendment was not approved.

Kim Scheppele was interviewed by The Wall Street Journal and told the reporter that “Hungary now allows investigation of particular individuals without any need to demonstrate a specific reason why every aspect of a person’s life must be reviewed.” She added that “that’s unheard of in democratic states” and that “the new national security law creates an Orwellian landscape in Hungary.”

Magyar Narancs / Photo Dániel Németh

Some Hungarian activists, quite independently from Kim Scheppele, also immediately thought of Orwell. Members of a group that calls itself “The Constitution is not a game” got together to teach Sándor Pintér a thing or two. About fifteen of them settled on the pavement and read George Orwell’s 1984 all day long. At the end, when they wanted to send a copy to the minister of interior, the policemen insisted that each of them sign the book before they would agree to take it inside the building.

One of the participants, approached by a reporter for Magyar Narancs, refused to talk to him in an area with trees with lots of branches because he was convinced that up in the trees among the branches the authorities place microphones. Maybe yes, maybe no. But the person was wary; Big Brother might be listening in. It says a lot about the atmosphere in Budapest.

Most of the “temporary provisions” of the Hungarian Constitution are scrapped by the Constitutional Court

Yesterday just before noon came the news that the Constitutional Court had annulled a number of so-called “temporary provisions [átmeneti rendelkezések] related to this Fundamental Law” that were specified in the closing sections of the new constitution.

Almost all the newspapers hailed this as the death of Fidesz’s plans to introduce registration as a prerequisite to citizens exercising their right to vote. But although the final outcome might indeed be the repeal of the law, the Constitutional Court’s ruling was not on the registration issue per se.

The ruling addressed not President János Áder’s request to the Court to investigate the constitutionality of the registration requirement but a request of the ombudsman, Máté Szabó, to take a look at the “temporary provisions.” Upon closer scrutiny, about two-thirds of these provisions were not temporary at all. Including in the new constitution the right to enact “temporary provisions” was only a Fidesz trick. They were smuggling all sorts of  unconstitutional laws into the constitution itself.

The majority of the Court decided to annul the questionable provisions retroactively. Five Fidesz appointees–István Balsai, Egon Dienes-Oehm, Barnabás Lenkovics, Péter Szalay and Mária Szívós–dissented.

From reading the law on “temporary provisions” in the collection of Hungarian laws it becomes clear that a huge part of the law has been scrapped, starting with the preamble entitled “On the transition from communist dictatorship to democracy.”  In it there is a long list of sins of the communist dictatorship for which the two-thirds Fidesz-KDNP majority made today’s Hungarian Socialist Party responsible. In addition, the law makes it clear that these crimes have no statute of limitations. In plain language, the current government has the legal right to prosecute politicians of the main opposition party for crimes committed, let’s say, by the Rákosi regime.

Article 11 (3) and (4), which allows the president of the National Judicial Office to transfer cases to courts of her choosing, was also scrapped. So were Articles 12 and 13 that deal with the early retirement of judges and prosecutors and Article 18 that states that the president of the Budgetary Council is appointed by the President. Article 21 is also gone; it allows parliament to decide the status of churches. Article 22, which prescribes that only those can ask for remedy from the Constitutional Court who have already exhausted all other legal possibilities, was also found questionable. Article 23 (1) and (3)-(5) is about electoral registration and it was annulled.

Article 27 is a tricky one; it concerns the functioning of the Constitutional Court. It is a kind of amendment to Article 37 (4) of the Constitution that reads: “As long as state debt exceeds half of the Gross Domestic Product, the Constitutional Court may, within its competence set out in Article 24 (2)(b-e), only review the Acts on the State Budget and its implementation, the central tax type, duties, pension and healthcare contributions, customs and the central conditions for local taxes for conformity with the Fundamental Law or annul the preceding Acts due to violation of the right to life and human dignity, the right to the protection of personal data, freedom of thought, conscience and religion, and with the rights related to Hungarian citizenship. The Constitutional Court shall have the unrestricted right to annul the related Acts for non-compliance with the Fundamental Law’s procedural requirements for the drafting and publication of such legislation.” Article 27 of the “temporary provisions” actually negates this right.

Article 28 (3) allows the government to pass regulations for local governments if they neglect to regulate something prescribed by law. Article 29 also made waves when it was adopted because it states that new taxes can be assessed in case the European Court fines Hungary because of the government’s actions that were not in line with European Union law. Article 31 (2) simply states that these temporary provisions were accepted on the basis of the old and new constitutions. And the Court also scrapped the last article (32) that declares April 25 as a memorial day of the new constitution. This last point might seem trivial, but it is in line with the reasoning of the Court. Declaring a special day for the celebration of the new constitution is certainly not a temporary measure.

The judges’ decision was not based on the constitutionality of the temporary provisions. They simply declared that these provisions were not temporary. Fidesz’s answer was immediate. József Szájer, who boasted that he wrote the constitution on an iPad on the train between Budapest and Brussels, announced shortly after noon today that since the Court didn’t examine the constitutionality of these provisions the government is planning to incorporate them straight into the new Constitution. The Constitution that was supposed to be the basic law of the land for centuries to come has already been amended three times and certainly will be many more times in the future. Every time because the political interests of Fidesz-KDNP so dictate.

Szájer is apparently a talented man and very familiar with constitutional law. In his interpretation the Constitutional Court didn’t interpret the law properly. According to him, the reference to the “temporary provisions” was put into the final article of the constitution because the framers always considered these provisions part of the Constitution itself. Well, Szájer might be a legal brain, but then why did they call these provisions “temporary”?

Antal Rogán, the whip of the Fidesz parliamentary caucus, seconded Szájer and also announced that in February when Parliament reconvenes they will fix the problem. Fixing means that he will gather the members of the caucus and tell them that here is the list of new amendments that they will have to vote on. The voting machine works flawlessly.

On Monday we can expect the Court’s decision on the registration issue. If the Court again finds only formal problems with the law, then the Fidesz-KDNP government can simply incorporate Article 23 (1) and (3)-(5) dealing with registration into the Constitution. But if the objections are more substantive and the judges find the law itself unconstitutional, then the Fidesz brains will have to work a little harder.

Máté Szabó as the sole ombudsman appointed by the current government has been a pleasant surprise. I think a lot of people expected him to be only a tool for Viktor Orbán’s designs. He must be a disappointment and Orbán must have cursed his bad judgment in allowing Szabó to be appointed ombudsman. I’m glad that Szabó turned to the Constitutional Court concerning this issue because without his intervention the world would not be as informed about the Orbán government’s undemocratic rule and its transgressions of the laws of the land. These “temporary provisions” were adopted one by one over time; only when one reads the whole list does one become painfully aware of the undemocratic nature of this regime.

Meanwhile, I was surprised to hear that the tables displaying the Basic Law have disappeared from public buildings. Central and local government offices were instructed by the government to set up a table in a prominent place so admirers of the new constitution could sign a “guest book” and could also purchase either an ordinary or a deluxe edition of the Basic Law. A person had to be hired to mind the table. Someone the other day noticed that the tables had disappeared.

The Table of the Basic Law in the Fifth District in Budapest. The mayor is Antal Rogán.

Indeed, sometime in September the government officials running these offices were ordered to remove them. The mayor of  Hajdúdorog told one of the reporters of ATV: “We had a room where people could take care of their business concerning trash removal. There was a table there already, so we put a tablecloth and the Basic Law on it. If anyone wanted he could look at it. I may add that only 1% of people over 18 wanted to buy the simple edition and no one was interested in buying the deluxe edition.” Now the table is gone. Imre Kerényi, who was the brain behind the Table of the Basic Law and to whose career I devoted a whole post, explained that the idea is not dead. It was planned this way.

It seems that this new and wonderful Basic Law has very serious problems, among them that the people don’t have a particular affinity to it. The lack of interest was too embarrassing. It was better to remove table and all. And I predict that the Basic Law’s aura will only decrease thanks to the games the Orbán government is playing with something as important as the constitution of the country.